According to case law, the therapeutic hazard is the damage occurring during a medical act, not attributable to a health professional, neither to the patient's previous condition, nor to its endogenous development (an accidental risk inherent in the medical act that cannot be controlled).
Clearly, the therapeutic hazard is "the fault of bad luck!" ".
A hazard is an insurmountable and unpredictable event, the first of which is all medical accidents, iatrogenic diseases and nosocomial infections resulting from prevention, diagnosis or treatment activities.
This hazard, which case law tried to remedy by extending the field of medical liability, was not, however, always repairable in the absence of fault.
It is already difficult to understand that a patient comes out of a healthcare establishment sicker than when he was admitted, but that no one could blame anyone else created situations that were too unbearable to be ignored any longer.
Therefore, how to repair damage arising from a therapeutic hazard?
The answer to this question is provided by the law n ° 2002-303 of March 4, 2002 on the rights of the patients, known as “Kouchner law” by creating a mechanism making weigh the compensation of the victims of the therapeutic hazard on the national solidarity. .
The creation of the Regional Commissions for Conciliation and Compensation for Medical Accidents, Iatrogenic Diseases and Nosocomial Infections (CRCI which became the CRI) and the National Office for Compensation for Medical Accidents (ONIAM).
The compensation mechanism put in place derogates from the principle of medical liability for fault on the part of the doctor and the care establishments.
For nosocomial infections, the law which was inspired by civil and administrative case law, makes a distinction according to whether the involvement of liability concerns a health establishment (hospital, clinics) or a health professional (doctor, surgeon). , anesthesiologist…).
Responsibility of healthcare establishments
Thus, according to article L.1142-1 of the Public Health Code, health establishments "are liable for damage resulting from nosocomial infections, unless they provide proof of a foreign cause". The responsibility of healthcare establishments for nosocomial infections is a very broad responsibility. The patient must provide proof that he was not infected with the infection before his hospitalization and that he did contract the said infection during a stay in the establishment in question or during the treatment provided.
The healthcare establishment will attempt to exonerate itself from its responsibility by proving that the patient has not been infected on its premises…. (he must demonstrate the existence of a foreign cause).
The responsibility of health professionals
Practitioners will only be held liable for the least serious damage. With the mechanism of the “Kouchner” law, the most significant damage from a nosocomial infection will be supported by national solidarity.
The limits of care
The implementation of the specific compensation regime for the most serious damages (CRI and ONIAM) is governed by the law of December 30, 2002, which entered into force on January 1, 2003.
These new provisions codified in article L 1142-1-1 of the Public Health Code are not retroactive. As a result, the consequences and interventions at the origin of nosocomial infection will not be covered by national solidarity until January 1, 2003, the date of its entry into force.
This means that for serious infections contracted before January 1, 2003, it will not be possible to enter ONIAM.
It is up to healthcare establishments, practitioners and therefore their insurers, to compensate patients who are victims of a therapeutic hazard contracted before the promulgation of the law.